On 20 March, the European Court of Human Rights (hereinafter “ECtHR“) delivered an important judgment in the case of Georgiou v Greece. Understanding the Court’s decision is crucial, as it could have far-reaching implications for the EU’s preliminary reference procedure and Member States’ procedural laws. It also adds to a growing body of ECtHR case law examining the relationship of EU law with the European Convention of Human Rights (hereinafter “ECHR“). Starting with the landmark Bosphorus case it has delivered judgments in various areas, including the European Arrest Warrant, EU asylum, child abduction and, as in this case, preliminary rulings. This short article offers some quick thoughts for that purpose.
Facts and ruling
Georgiou, a former International Monetary Fund (IMF) official, faced criminal charges for a series of crimes, allegedly committed during his tenure as President of Hellenic Statistical Authority (ELSTAT). The Criminal Court of appeals found on 1st August 2017 that Georgiou was guilty of violation of duties by having released the Greek fiscal deficit information without approval from the ELSTAT board. The violation of these duties was based on the breach of Art. 10 of Law no. 3832/2010 regarding the establishment of the ELSTAT. Georgiou then appealed to the Greek Cassation Court (hereinafter “Areios Pagos”). Georgiou requested, inter alia, that Areios Pagos should submit a preliminary reference regarding the interpretation of European Union law from the European Court of Justice (hereinafter “CJEU”) according to Art. 267 para. 3 TFEU. The norm he wanted to obtain an interpretation of was Principle 1, Indicator 1.5 of the European Statistics Code of Practice.
Areios Pagos rejected his appeal without addressing or even mentioning Georgiou’s request for a preliminary reference. Georgiou then turned to the ECtHR, lodging a complaint concerning a violation of Art. 6 § 1 of the ECHR. His complaint was based on the tacit refusal of his request for a preliminary reference and the absence of any reasoning on the matter of his request in the Court’s decision.
The ECtHR cited its established case law on the general principles governing the application of Article 6 § 1 in similar cases (Case of Dhahbi v. Italy, 8 April 2014). Citing further the case Vergauwen and Others v. Belgium, the Court stated that Article 6 § 1 imposes an obligation on national courts to give reasons for decisions by which they refuse to make a reference for a preliminary ruling. In the specific context of Article 267 TFEU, national courts are required to give reasons for a refusal to refer a question for a preliminary ruling on the interpretation of EU law to the CJEU if no judicial remedies are available under national law against its decisions.
In this case, Areios Pagos was obliged to give reasons for its refusal to refer a question to the CJEU for a preliminary ruling, since the decision was not subject to appeal under domestic law. The Greek government put forth, that a preliminary reference was not necessary for Areios Pagos to reach its final judgment since it was based on an assumption that the relevant EU law provisions in question were clear. The ECtHR responded that this was a matter for the CJEU to determine. The ECtHR found that Areios Pagos had not provided any reasons for its refusal to seek a preliminary ruling and had not even mentioned Georgiou’s request. This lack of reasoning and justification amounted to a violation of Article 6 § 1 of the ECHR.
As the applicant made no claim for damages, the ECtHR, in line with his request, ruled in favor of reopening the criminal proceedings in front of the Greek Courts.
Why is this so important?
The ECtHR decision touches upon three important issues. First, the obligation of a national court to provide a reasoned judgement for refusing a request for a preliminary ruling from the CJEU. Second, this decision makes it apparent how the two European Courts differ in their approach to the issue of the refusal of a national court to request a preliminary ruling from the CJEU. Finally, the decision addresses –and thus enters the realm of procedural law and the res judicata principle – how the issue of the refusal of a national Court to provide reasoning and the subsequent breach of Art. 6 of the Convention can, in the absence of damages, be repaired by the State.
Regarding the first issue the ECtHR repeated its established case law that national courts are not exempted from the duty to respect the principle of fairness inherent to the right to a fair trial. The latter principle may be infringed where the refusal to seek a preliminary ruling from the CJEU is deemed arbitrary. In this context, Article 6 ECHR obliges courts to state the reasons for refusing to initiate a preliminary ruling procedure before the CJEU. In its reasoning, the ECtHR explicitly refers to the relevant case law of the CJEU in these cases. In the Georgiou case, the ECtHR had an “easy day“ as Areios Pagos did not respond at all to the applicant request.
As for the second issue, commentators have already mentioned that the decision continues the ongoing dialogue between the case law of the CJEU and the ECtHR in the matter of the obligation to justify a refusal on preliminary rulings. The CJEU has stated in its recent case law (for comments on this case law, see here) that last instance courts, like Areios Pagos, should independently decide whether or not to refer questions to the CJEU. Both CJEU and ECtHR agree on the matter that the national courts have a duty to state reasons for their decision. They disagree, however as has been pointed out, on two important matters: Firstly, on the legal consequences of the absence of reasons. While the CJEU does not attach any legal consequences to the violation of the duty to provide reasoning, the ECtHR sees in the absence of reasoning a violation of Art. 6 ECHR and the right to a fair trial. Secondly, an important differentiation relates to the role of the applicant. To put it in procedural terms, the ECtHR seems to see the question of the referral to a preliminary ruling not only as an ex officio power of the national court, as the CJEU sees it, but also as a procedural right of the applicant to set in motion the referral mechanism – with its unreasoned denial amounting to a violation of Art. 6 ECHR.
The third issue concerns the remedy chosen by ECtHR. The ECtHR held that the reopening of the domestic proceedings before Areios Pagos, if requested, would constitute an appropriate remedy for the violation. By ordering the reopening of the procedure, the ECtHR finds itself in tension with the well-established procedural principle of res judicata. The main purpose of res judicata is to ensure that once a matter has been decided, further controversy or legal uncertainty about the matter is eliminated. The ECtHR has already declared that legal certainty, which requires, inter alia, the respect of a final binding decision, constitutes one of the fundamental aspects of the rule of law. As Claassen has already mentioned, it is the first time the ECtHR has ordered the specific remedy of reopening the national proceedings as appropriate redress for the violation of a national courts’ duty to provide reasons.
Opens questions and implications
The Georgiou case raises some issues, which remain to be solved: So far according to Art. 46 ECHR, the reparation of a violation means that the state must – within reason and as far as possible – restore the original legal and factual situation (“restitutio in/ad integrum“). This means that the State had a substantive legal obligation to adapt the domestic legal situation to the requirements of the ECHR and to remove any obstacle in national law that stands in the way of restitution in favor of a complainant. However, until the Georgiou case there was no obligation under the Convention for the states to allow for the reopening of domestic proceedings following a conviction by the ECtHR. Even the ECtHR has been more cautious in the past, stating – only in the reasoning and not in the ruling itself – that “a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation“ in similar cases. Following the Court’s decision in the Georgiou case, this appears to have changed.
A second issue is that, under previous case law of the ECtHR, an applicant could request the reopening of their case from the national courts. However, this request did not necessarily create an obligation for the national courts to accept it. The recent Georgiou ruling may be open to interpretation regarding whether national courts are now obligated to accept all applications requesting a reopening of proceedings.
Posted by Philippos Georgios Kotsalis, LL.M. (Berlin) PhD (c.) Humboldt University, research assistant at the Humboldt European Law School (HELS), and Vasileios Kapetanos, LL.M. (Berlin) PhD (c.) Humboldt University, Lectuter (Lehrbeauftragter) at the Humboldt Universität zu Berlin. The authors thank Prof. Dr. Martin Heger (HU Berlin) for his support and Dr. Rodrigo Kaufmann for his editing proposals.
Suggested citation: P Kotsalis and V Kapetanos, “Georgiou v. Greece: The right to fair trial and the EU preliminary reference procedure-Harmony or tension?”; REALaw.blog available at https://wp.me/pcQ0x2-Fe